People ex rel. Matthews v. New York State Division of Parole

272 A.D.2d 860, 706 N.Y.S.2d 810, 2000 N.Y. App. Div. LEXIS 5255

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2000
• Docket: Appeal No. 1
• Status: Published

Opinions

—Judgment reversed on the law without costs, petition granted and petitioner restored to parole supervision. Memorandum: Petitioner was released to parole in January 1991 and was arrested in February 1992 on Federal charges of bank robbery. Petitioner was convicted of those charges and sentenced to Federal prison. The Court of Appeals for the Second Circuit affirmed the judgment, but vacated the sentence and remanded the matter for resentencing (see, United States v Matthews, 20 F3d 538). As a result, petitioner was held by the United States Marshals and the Federal Bureau of Prisons at seven New York county jails for 28 months until he was resentenced and sent back to Federal prison in Pennsylvania.

Before his release from Federal custody, petitioner commenced this proceeding seeking a writ of habeas corpus. Although the New York parole revocation hearing had not yet been held, petitioner argued that any hearing held at that point would be untimely (see, Executive Law § 259-i [3] [f] [i]). We agree.

Respondent does not contend that Executive Law § 259-i (3) (a) (iv) applies to this case, or that any of the exceptions listed under Executive Law § 259-i (3) (f) (i) applies to extend the 90-day time limit for holding revocation hearings. Rather, respondent contends, and Supreme Court agreed, that petitioner was not subject to respondent’s convenience and practical control because respondent had no actual or constructive notice that petitioner was in New York during those 28 months (see, People ex rel. Gonzales v Dalsheim, 52 NY2d 9, 14; People ex rel. Walsh v Vincent, 40 NY2d 1049, 1050). Whether respondent had actual or constructive notice of petitioner’s presence in New York is not dispositive. Rather, respondent must show that petitioner was not subject to its convenience and practical control while in New York, a burden that it failed to meet (see, People ex rel. Walsh v Vincent, supra, at 1050; Matter of Garland v New York State Div. of Parole, 86 AD2d 848, 849; see generally, People ex rel. Brown v New York State Div. of Parole, 70 NY2d 391, 398). We therefore reverse the judgment, grant the petition, and restore petitioner to parole supervision.

All concur except Pigott, Jr., P. J., and Kehoe, J., who dissent and vote to affirm in the following Memorandum.